AFTER A JURY in Florida concluded that 2 Live Crew's famous act was not obscene, civil libertarian lawyer Alan Dershowitz said he agreed with the result but that it should not be up to jurors in the first place. The First Amendment absolutely protects such expression, and courts have no right to review it, he said.
I had been reading up on the history of the Supreme Court's grappling with the issue of obscenity, and I came across a quote from Professor Dershowitz in the wake of the court's 1973 decision that gave us our current definition of obscenity and stated that it is okay to ban it. This decision restated an older one. What was new in it was that "community" rather than "national" standards could be applied to determine if something was obscene.
Dershowitz said, "If a filmmaker or a publisher knows that his product is legal in most cities but is likely to be indicted and brought to trial in other places, he may well engage in self censorship. And so the most narrow, the most restrictive local community standards will gradually determine what the rest of the country sees -- and does not see."
He wasn't the only one who thought so. Justice William Brennan said in a dissent to the 1973 decision that it was "nothing less than an invitation to widespread suppression of sexually oriented speech."
How wrong can you get!
Today "sexually oriented speech" that in 1973 would have been considered unacceptable by the community standards of Las Vegas is routinely seen and heard on radio and television, in movies and in magazines and on stage in every sleepy, puritanical hamlet in the land.
Some of this "sexually oriented speech" includes on-stage or on-camera sexually oriented behavior. 2 Live Crew carries this to the limits. Today's civil libertarians also defend this as constitutionally protected.
I wonder if even the Supreme Court's most outspoken defender of free expression would have gone that far. That was Justice William O. Douglas. He hated censorship. I don't think he ever voted with the majority in the obscenity cases of the 1950s-1970s, when the issue was being thrashed out.
But once he said this in a dissent, "No one would suggest that the First Amendment permits sexual misconduct in public places."
He also, somewhat grudgingly, said that "speech to be punishable must have some relation to action which could be penalized by government." It seems to me this is the aspect of the 2 Live Crew case that keeps getting overlooked. Forget the dirty words and the sex. The lyrics of some of the group's songs celebrate and, to some ears no doubt, advocate anti-female violence of the sort "which could be penalized by government."
Such utterances in any public place seem to me to be no mor deserving of constitutional protection than, say, those of a group called 2 Live Klan chanting about the joy of lynching and other racial and religious terror.